Opinion
March 11, 1910.
M. Spencer Bevins, for the appellant.
J.A. Seidman, for the respondent.
This action is brought to recover for work, labor and services of an attorney and broker in procuring a person ready, willing and able to take an assignment from the defendant of a lease of real estate in the city of New York. The answer is a general denial. After issue had been joined the defendant moved, upon an order to show cause, for the examination of the plaintiff before trial. The motion was granted and plaintiff appeals.
There seems to be a growing tendency in favor of such examinations, to the end that justice may be promoted by preventing surprises at the trial and lessening, so far as possible, the expenses incident to it; but in every case where such examinations are permitted, facts must be presented from which the court can see that the application is made in good faith and that the proof of the facts concerning which the examination is desired would be admissible at the trial. ( Ehrich v. Root, 122 App. Div. 719.)
Here the papers upon which the order was granted permitting the examination are to the effect that the action was begun to recover a certain sum for services, and that the testimony of the plaintiff is "material and necessary" for the prosecution of the action by the defendant. Not a single fact is set forth showing how the testimony of the plaintiff will be "material and necessary," and, besides, the defendant will not have to prosecute the action. It is true the defendant states he intends to read the evidence upon the trial, but for what purpose does not appear, unless it be to show that the plaintiff cannot prove a cause of action. If this is the object, then the application is not made in good faith.
There is a further allegation in the moving papers that the testimony of the plaintiff is "material and necessary" for the prosecution of the action by the defendant, in order to prove that the plaintiff for a number of years has been and still is in the employ of the William Fox Amusement Company as its counsel and that he is also the attorney and counsel for William Fox personally. Just what William Fox or the William Fox Amusement Company has to do with the issues involved in the subject-matter of this litigation nowhere appears. Upon the issue as framed, it is sufficient that there is nothing in the record before us to indicate that the testimony of the plaintiff is material and necessary for the defendant, and for that reason the motion should have been denied.
The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion to vacate the order for the examination of the plaintiff before trial granted, with ten dollars costs.
CLARKE, LAUGHLIN, SCOTT and DOWLING, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion to vacate order for examination granted, with ten dollars costs.